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Five Things You Need to Know About Surrogacy Law in Canada

Are you considering being a surrogate, or exploring surrogacy to grow your family? If so, keep reading for five things you need to know about surrogacy law in Canada. 

1. Surrogacy is Legal in Canada and is Federally Regulated 

Surrogacy is legal in Canada, and is regulated under the federal Assisted Human Reproduction Act (“AHRA”). However, certain provincial laws are very important as well – such as laws related to who is legally recognized as the parents of a child. 

2. Surrogates Cannot Receive Payment for Surrogacy Services, Only Reimbursement for Expenses 

The ARHA provides that all surrogacy in Canada must be “altruistic”. This means that the surrogate cannot make a profit from being a surrogate. In Canada, surrogates are only permitted to have certain expenses reimbursed or paid for, but not to be paid a salary or otherwise gifted items in lieu of a salary. This is different compared to other jurisdictions, such as California, where a surrogate may charge a fee. 

All of the surrogate’s reimbursable expenses require documentation such as receipts, and may require written confirmation from a medical professional that the expenses are necessary. This includes: the surrogate’s travel to medical appointments; the surrogate’s legal fees; counselling services; products or services that are recommended in writing by a doctor or midwife; and maternity clothes. 

For a complete list of eligible expenditures, please consult the Reimbursement related to Assisted Human Reproduction Regulations or the Government of Canada’s guidance on this topic. 

3. You Must Have a Surrogacy Agreement Prior to Initiating Pregnancy 

In order to proceed with a surrogacy, Canadian law requires that a surrogacy agreement be in place. Canadian law also requires that the surrogate have independent legal advice on the agreement prior to signing it. Usually the intended parents retain a lawyer who will draft the contract, and then the surrogate will retain her own lawyer (paid for by the intended parents) to review the contact with her. 

Surrogacy agreements address all aspects of the process, including the time period prior to pregnancy, during, and after. It will set out the parties’ intentions with respect to important topics such as parental rights for the child; whether the surrogate will have any contact with the child; when/if a pregnancy will be terminated; how eligible expenses will be reimbursed; etc. 

While not all aspects of a surrogacy agreement are strictly enforceable (for instance, it is the surrogate’s decision ultimately about whether to terminate a pregnancy, where to give birth, etc.), they are still legally required, and help avoid future disagreements or conflicts. 

4. The Process to be Recognized as Legal Parents Depends on What Province the Child is Born In 

The process for intended parents to have their parental rights recognized will depend on: the province the child is born in, whether the intended parents have a genetic link to the child, and whether the surrogate has a genetic link to the child. A fertility law lawyer will ensure that you correctly register the birth and that the intended parents are named as the child’s parents in accordance with the law in the jurisdiction where the child is born.  

It is recommended that you speak with a lawyer about this issue before you choose a surrogate, as laws vary greatly from province to province on this issue. You should also be checking the laws in your home country with a local lawyer, if you are not from Canada, to determine how you can bring your child back home as his or her recognized parents. 

5. The Child May Not be Covered By Canadian Health Care After Birth 

Canada is famous for its “free” health care. However, medical insurance for a child born to a surrogate post-birth is particularly important for intended parents who are from outside of Canada. 

While Canada’s public health care system will continue to provide free medical care for the surrogate and the child before and during birth, it may not continue to cover the child after birth. Intended parents should ensure that they do their research and have health insurance for the child in place in case there are medical costs associated with the child’s care. 

Surrogacy is complicated, and there are federal and provincial laws that apply before, during, and after the birth of a child through surrogacy. Having the right legal counsel is critical to ensure that your surrogacy journey goes smoothly. 

If you are considering surrogacy, either as intended parents, or becoming a donor or a surrogate, contact one of McKenzie Lake’s Family Law team and we would be pleased to assist you. 

For further information with regard to Surrogacy in Canada, please visit the MySurrogateMom website.

This article was written by Family Law Lawyer Megan Strachan